The current rage in Washington is to regulate citizen political speech under the guise of “lobbying reform.” The idea is that if someone contacts citizens and urges them to contact members of congress, this needs to be regulated because it might… it might… well, it might do something. That it will corrupt the government in some way, or that it will create the appearance of corruption – the only justifications the Supreme Court has yet recognized for limiting political speech – is not taken seriously, but the anti-speech folks at the Big Foundation founded “reform” lobbies can’t stand the idea that somewhere Americans are talking politics without government looking over their shoulders. Therefore, we get a call to regulate “Astroturf lobbying,” a bizarre phrase which demonstrates the contempt that the “reform” organizations have for ordinary voters. To these Washington elitists, ordinary voters are not really “grassroots” – rather, their opinions are not to be respected, but are merely manufactured imitations of real political thought – presumably the type of deep thinking conjured up at conferences and symposia by academics and think tank denizens.
Now, in an earlier post we explored a bit of the background of Senator Benjamin Ryan Tillman, the sponsor of the first federal campaign finance law, the Tillman Act. The Tillman Act, which banned corporate contributions to candidates and remains the backbone of federal (but not state) campaign finance law, turns 100 years old later this month. But we expect no celebrations from the anti-speech lobby. Tillman was a vile racist whose opposition to corporate contributions was fueled by his fear that the northern “money power” would destroy the southern system of Jim Crow that Tillman has been instrumental in creating. Like todays’ reformers, Tillman lacked confidence in the ability of voters, presented with arguments, to reach sound conclusions, stating, "I have come to doubt that the masses of the people have sense enough to govern themselves." Needless to say, this type of stuff doesn’t fit the would-be reformers self-image as crusading good guys out to clean up government. So while self-styled “reformers” love to talk about Teddy Roosevelt and (for the erudite, Elihu Root), poor old Ben Tillman is shunted aside in the pantheon of campaign finance heroes, locked in the basement like a crazy aunt.
We want to make up for this oversight. Is there anything that the life and times of Pitchfork Ben can teach us about today’s efforts to regulate communications to citizens about legislative issues? Here is a story from Tillman’s early life. According to Tillman biographer, Stephen Kantrowitz, “During the summer of 1849 the arrival of abolitionists pamphlets in the mail alarmed upcountry [South Carolina] elites.” The Tillman family’s hometown newspaper, the Edgefield Advertiser, responded with an editorial worthy of today’s New York Times. It demanded to know who the distributors of these pamphlets were, and how they had obtained the names and addresses of those to whom they had sent pamphlets. And it expressed worries – who were these “secret agents” and what else did they intend to do? The paper warned that these purveyors of opinion were “lurking in our midst,” and that “the community should have an eye upon them.” Eventually, a “committee of public safety” arrested a man named Barrett as the purported distributor of the pamphlets. Barrett was released but forced to leave the state.
Today, several of the anti-speech groups promoting the regulation of what the derisively call “Astroturf lobbying” have disingenuously claimed that, “This lobbying disclosure reform would not in any way restrict any lobbying activities.” Right. As if having to register with the U.S. government and file ongoing, detailed reports, under the threat of fines and prosecution, will not deter speech. Of course, we are no longer living in the antebellum South, but it is naïve to think that disclosure cannot be used – is not used – to intimidate and silence. That is why the Supreme Court has consistently protected anonymous speech of the type these “reformers” now want to regulate. In Thomas v. Collins (1945), the Court upheld the right of labor organizers to operate anonymously. In NAACP v. Alabama (1958), the Court upheld the right of a citizen’s group engaged in the discussion of issues to keep secret its list of members of financial supporters. In Talley v. California, the Court upheld the right to anonymously distribute literature promoting a commercial boycott. In McIntyre v. Ohio Elections Commission (1995), the Court upheld the right of a citizen to anonymously distribute to the public literature on a pending ballot issue. And in Watchtower Bible and Tract Society v. Village of Stratton (2002) the Court affirmed the right of citizens to anonymously solicit door to door. Only within the narrow constraints of advertisements explicitly advocating the election or defeat of candidates has the Court upheld government mandated disclosure, in Buckley v. Valeo (1976). And so we face the choice: do we regulate communications about issues that are made to citizens, as the Edgefield Advocate advocated? Or do we stick with the framers of the Constitution, who we might recall, chose the anonymously written Federalist Papers to urge its adoption? Here in our little offices, we’ll side the real reformers of 1789 against the heirs to Ben Tillman’s anti-speech philosophies.
For more on why the regulation of grassroots lobbying is generally inappropriate, read this policy primer.
